Point of Law: Private road land - originally the suit land part of the land and that very same land standing recorded in the name of Defendant No. 1 is noted as Private Road. This Plaintiff was not a party to the Title Suit filed by the Defendants in whose favour it had been decreed.

JUDGMENT :

D. DASH, J.

1. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure (for short ‘the Code’) seek to assail the judgment and decree passed by the learned District Judge, Jajpur in RFA No. 27 of 2010.

2. By the said judgment and decree, the First Appellate Court has set aside the judgment and decree passed by the Trial Court in dismissing the suit. The First Appellate Court having allowed the Appeal in part has restrained these Appellants permanently from making any construction over the suit land and cause any obstruction in its user as passage with further direction to remove the brick wall and fence constructed thereon the said suit land. When the unsuccessful plaintiff had carried the First Appeal now, this Second Appeal has been filed by the Defendants who have suffered from the judgment and decree passed by the First Appellate Court.

3. In order to bring in clarity and avoid confusion; the parties hereinafter have been referred to as per their position assigned as would have been so assigned had the event taken place during suit.

4. The Plaintiff’s case is that the suit land stands jointly recorded in his name as also others including Defendant No. 1. Plaintiffs admitted that Defendant No. 1 was the original recorded owner of the said plot of land and he sold the land from out of that plot to the extent of 10 Biswa and 14 Gandas to the Plaintiff and others vide registered sale-deed No. 354 dated 18.02.1986; admitted in evidence and marked Ext.3. It is stated that this part of the sold land is situated towards Eastern side. It is the further case of the Plaintiff that he with other purchasers have been using the suit land as passage to approach the public road that exists towards the Southern of the suit plot. In support of the same, the plaintiff had pleaded one more point that on the same day, the Plaintiff also sold an area of Ac.0.01 decimals 5 Biswa and 5 Gandas of land out of that suit Plot No. 296 by registered sale-deed to his wife-Defendant No. 2 which has been admitted in evidence and marked as Ext.4. According to the Plaintiff, the land under Plot No. 296/1039 is a private road for user of the Plaintiff, Defendant No. 1 and others who were tenants of the land under the Hal ROR; wherein the kisam of the land also finds mention as ‘Road’ and the portion has been so carved out in the village map, Ext.A. It is stated that he has the houses on 292, 293 situated on the northern side of the suit land which leads to the village road on its southern end. It is his case that they are using the suit land to approach the village road from their respective houses and that is the only passage for ingress and egress to their dwelling houses. It is alleged that Defendant No. 2, in collusion with Defendant No. 1, keeping on eye over the property and somehow to mount pressure upon the Plaintiff and others and coerce them raised a brick wall on northern end of the passage causing great hardship and to their utter disadvantage and for that Plaintiff has been compelled to file the Suit for permanent injunction. It is also stated that during pendency of the Suit, the brick wall was also put up further on the northern end of the suit plot, the Defendant No. 1 further made constructions over there causing further obstructions in the user of the suit land as passage.

5. The Defendants in their joint written statement have admitted that the suit land was a part of the land under Plot No. 296 and was recorded as ‘Ghoroi Rasta’ (Private Road) in the name of Defendant No. 1 the Hal ROR. According to them, this was the part and parcel of the homestead land under Plot No. 295 consisting Ac. 0.04 decimals under Gharabari kisam; whereas land under Plot No. 294 measuring Ac. 0.05 decimals is a Tank/Gadia. It is further stated that the Title Suit No. 265/1987 filed by the other co-sharers of the Plaintiffs for permanent injunction and correction of the ROR having been withdrawn, thereafter the Defendant No. 1